Fallout from the nuclear option

J. Harvie Wilkinson III is a federal circuit court judge, appointed in 1984 by Ronald Reagan, but he’s never seen himself as a doctrinaire conservative trying to “storm the barricades.” After Senate Democrats recently invoked the “nuclear option” and voted to ban filibusters for most presidential nominations, he outlined the consequences of that rash and regrettable action in The Washington Post:

“The question for a great nation should often be: Will the center hold?” the judge wrote. That’s a “quiet question,” but one that “must be posed now.” And as the Congress insists on demonstrating, the voices answering “no” are growing louder and stronger.

Both parties bear a huge amount of blame here. Republicans were totally unjustified in using the filibuster to block three of President Obama’s eminently reasonable and completely qualified nominees to the D.C. Circuit Court of Appeals. They were trying in effect to overturn the results of the last election, and their dead-end strategy seems deliberately designed to push Democrats to the breaking point.

Instead of showing restraint, however, Democrats allowed themselves to be pushed. In fact, many in their ranks — particularly younger lawmakers who have never served in the minority — were desperately eager for the showdown. Their emotions were stoked. They wanted revenge. And they took it.

Sure, Democrats can derive some short-term gains. Obama will get to place more judges on the Federal bench and win quicker confirmation for some important appointments, like Janet Yellen to head the Federal Reserve. But the long-term costs could be enormous. And it’s our bet that years from now, many of the Democrats who backed the change will regret their vote.

For one thing, Republicans still have many tools at their disposal to delay and derail nominations. They can boycott committee meetings, force lengthy floor debates or wreck legislative schedules.

Moreover, the partisan fumes choking Capitol Hill have turned even more toxic — if that’s possible. Pragmatic Republicans like John McCain and Susan Collins tried to broker a last-minute compromise but were brusquely brushed aside. As a result, their ability — and willingness — to seek common ground in the future has been badly undermined.

Obama still has an ambitious legislative agenda for his final three years in office: reforming immigration, raising revenues, revising entitlements. All of those goals will now be harder to achieve, not easier.

“If you thought the Senate has already ground to a near standstill, this is like throwing sand into the gears of an already rusty machine,” Republican strategist Ron Bonjean told Bloomberg News.

The long-term costs could be even greater. Without the threat of a filibuster to restrain them, presidents will be freer to nominate more staunchly ideological judges. One day it will be a Republican president making those choices and Democrats have just bought themselves more hardliners like Antonin Scalia and Clarence Thomas.

“Ideologues pose a unique risk for courts” because they shred “the very understandings by which we operate,” judge Wilkinson wrote. “Taking disagreements personally, believing oneself in sole and permanent possession of the truth can, in countless ways … corrode the quality of justice.”

The “quality of justice” is not the only potential victim here. The essence of our political system is at risk.

The core value of democracy is not ensuring majority rule; it is protecting minority rights. Sen. Carl Levin of Michigan, one of three Democrats to oppose the “nuclear option” made that precise point in a powerful floor speech after the vote.

“If a Senate majority decides to pursue its aims unrestrained by the rules, we will have sacrificed a professed, vital principle for the sake of momentary convenience,” he warned.

Levin went on to quote Joe Biden, who was serving in the Senate during an earlier confrontation in 2005. Then the sides were reversed. Democrats were filibustering President Bush’s judgeship nominations and Republicans were threatening to change the rules.

“The nuclear option abandons America’s sense of fair play,” Biden cautioned. “It’s the one thing this country stands for: not tilting the playing field on the side of those who control and own the field.”

He was completely correct about that. We have lived and worked in countries where the winners — “those who control and own the field” — feel free to change the rules, undermine their opponents, and unfairly enshrine their hold on power. That’s not real democracy, that’s tyranny by another name.

Yes, the Republicans planted the nuclear bomb. But the Democrats lit the fuse. And the fallout from that explosion will pollute the capital for years to come.